Date: 28 July 2006

Texas Court Affirms Judgment for Southwest Airlines

Related Document: Opinion - MOL-0608-01 (PDF format)
SAN ANTONIO, Texas — A Texas appellate court affirmed on July 19 that two Southwest Airlines employees who first complained of workplace exposure to mold and other contaminants in 1995 waited too long to sue for personal injury damages. Palombo, et al. v. Southwest Airlines Co., No. 04-05-00825-CV (Texas Ct. App., 4th Cir.).

Leah Palombo and Jennifer Wilson, who quit the airline in 2004, sued Southwest in the 225th District Court in Bexar County in October 2001, more than six years after asking the National Institute for Occupational Safety and Health to investigate the Southwest reservations center. They alleged negligence, intentional conduct, fraud, battery and intentional infliction of emotional distress.

Palombo and Wilson both complained of illnesses and Wilson provided a letter from Dr. Andrew Campbell that she suffered from an illness referred to as 'sick building syndrome,' according to a court summary.

Southwest moved for summary judgment, contending that the action was barred by a two-year statute of limitations for personal injury claims and by the exclusive remedy provisions of the state’s workers’ compensation statute.

The District Court granted the motion on Oct. 13, 2005, and Palombo and Wilson appealed.

The Fourth District Court of Appeals affirmed on statute of limitations grounds and did not reach the issue of exclusivity.

The court rejected appellants’ argument that it apply the discovery rule to their claims because they were not aware of the exact nature of their illnesses.

Wilson and/or Palombo filed workers’ compensation claims, notified their union, requested health hazard evaluations, and took other actions to show that, beginning in 1995, they were aware they suffered some injury, the court said.

'Even if the seriousness or the precise name of the illnesses was not fully known in 1995, because both Palombo and Wilson had symptoms which put them on notice of ‘some injury,’ the discovery rule was properly satisfied,' the court ruled.

The Court of Appeals also found the fraudulent concealment exception to the statute of limitations inapplicable.

Wilson and Palombo alleged that Southwest hid knowledge of contaminants in the reservation center and continuously maintained that there were no air quality issues at the site. As evidence, they cited a report by the Occupational Safety and Health Administration, which investigated the workplace from April to June, 1999.

But the court said that because Palombo and Wilson were on notice of their illnesses in 1995, 'they are precluded as a matter of law from relying on the estoppel effect of fraudulent concealment.'

The court declined to address the appellant’s argument of continuing tort because it was raised for the first time on appeal.

Bruce J. Mery of San Antonio and L.H. Steven Savola and Dino G. Galardi of Ferraro & Associates in Coral Gables, Fla., represent Palombo and Wilson.

J. Joe Harris, Annalyn G. Smith and Natalie C. Rougeux of Bracewell & Giuliani of San Antonio represent Southwest Airlines.
 
 

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